Of course Ireland was going to be a thorn in the side of Brexit— has history taught us nothing?

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A now demolished British Army watchtower near Crossmaglen, Co.Armagh

Many people are still shaking their heads in confusion, struggling to comprehend the fact that the UK voted to leave the EU in June 2016. While rational explanations for the result have been proffered, the consensus appears to be that there is not one to be found. Brexit was, instead, a hugely emotive decision. Brexit stirred up something in the hearts of many British people: a nostalgia for empire, a fear of the other, or the emotive promise to ‘Make Britain Great Again’. Indeed, the very fact that the DUP supported Brexit despite all warnings as to what this may mean for the future of the UK should have been a strong warning sign as to the strength of emotions in the Brexit debate.

Similarly, there are many rational reasons as to why Ireland is resisting any attempt by the UK to impose a hard border. Economic factors feature highly in this debate, as do security and practical concerns. Many seem to have forgotten, however, that, like Brexit itself, the border in Ireland was, is, and will be an incredibly emotive issue. These emotions must be addressed or any attempt at a solution to the ‘Irish question’ will fail.

The Border Today

The border between Louth and Armagh along the N53 road looks like this today:

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This same road (now called the A37) continues for another 5.5km (or 3.4 miles if you wish) until it crosses the Fane river and re-enters the republic (or the south if you wish) in County Monaghan:

 fane bridge

The beautiful ambiguity of the Good Friday Agreement that made peace possible is illustrated by these two pictures. The only indication that you are entering a different jurisdiction is the change in road markings and the road signs alerting you to the fact that the speed limit is now in miles per hour. The big constitutional question is pushed to one side. It is not forgotten but it is also not acknowledged except for whatever practicalities are required. It is still there but you have to look for it. If you don’t want to see it, you don’t have to.

 

 Irish emotions and Brexit

Brexit will change this. Brexit has to change this. If the UK continues its current negotiating strategy, Brexit will make the border un-ignorable. The impact will not just be practical but emotional too. When Irish emotions concerning the border are raised in the Brexit debate, it is usually done in a foreboding tone, warning at the possible return to violence. While this is a genuine concern, it is only a tiny minority of a minority that would consider this a legitimate response. Rather, the emotion dominating the vast majority of people living in border communities will be a profound sense of sadness and fear. Sadness that the spectre of the past has come back again more visible than in decades, and fearful as to what the future may bring.

 Anger will, undoubtedly, be felt too and faux surprise from the rest of the UK establishment that Ireland is an unforeseen stumbling block in the Brexit negotiations is particularly irksome. Likewise, Irish anger will not be defused by patronising op-eds conjuring up images of the Irish border as being about the rural peasantry smuggling a few milk churns, or hot takes calling for the Irish Prime Minister (because Taoiseach is not a word the British are familiar with) to behave himself  and stop acting like the bold little child that he is.  Indeed, it was almost inevitable that eventually certain parts of the British media would resort to crude, borderline racist Irish stereotypes reminiscent of the political cartoons of the Victorian era.

 Lessons from History?

Surely, if one were to reach back to Victorian Britain, rather than just look at the cartoons for some artistic inspiration, they would take heed from the defining issue of late nineteenth century British politics: Irish home rule. The magnitude of this question divided political parties and ended numerous careers; left an indelible mark on British constitutional law; and, ultimately, ended up in secession, violence, and the birth of a new state. In short, the question was not easily resolved and arguably has not been resolved to this day.

When, therefore, has a solution to anything between the UK and Ireland been straightforward? The answer is never. Merely talking about Ireland reveals insights into one’s particular political perspectives. Is it Northern Ireland or the north of Ireland? Ulster or The Six Counties? Is it Ireland, the south, the republic (should ‘republic’ be capitalised?), or the 26 Counties? Are we talking about the ‘Irish border’ or the ‘British imposed border in Ireland’?  The Good Friday Agreement, as illustrated by the pictures above, left the big questions to one side; perhaps for final resolution in the future when the passage of time would make them more manageable. Perhaps this perpetual suspension was itself the lasting resolution. Brexit has shattered this illusion, and sparse, disingenuous policy papers outlining ‘trusted traders’ and electronic customs regulations will not mend this carefully negotiated ambiguity.

 

Image Credit: http://bit.ly/2AD4ibt

 

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By voting to support the 8th Amendment, the Fianna Fáil Ard Fheis has made a strong case for repeal

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2018 will more than likely see a referendum on the 8th Amendment of the Constitution in some form or another. At the Fianna Fáil Ard Fheis last weekend, delegates voted in support of a motion to oppose ‘any attempt to diminish the constitutional rights of the unborn’ thus sending a clear signal to party leader Micheál Martin as to where the majority of members stand on the 8th Amendment. In so doing, however, the Fianna Ard Fheis has only demonstrated why complex issues such as abortion do not belong in a constitution.

What Belongs in a Constitution?

Generally speaking, constitutions are a collection of rules and principles that express the shared values of a political community. To illustrate their agreed upon status, constitutional provisions tend to be harder to change than other laws such as legislation. If everybody agrees with the values in a constitution, then why should there be a need to change them? Constitutions also tend to be drafted in broad terms to allow for flexibility and to accommodate a wide variety of scenarios that the drafters may not even be capable of envisaging at the time the constitution is enacted. Drafting constitutions broadly can also help to ensure the ‘agreed’ status of constitutional norms by leaving space for differing, potentially conflicting interpretations of the same provision to co-exist. Of course, constitutions may need amending from time to time and an overly-rigid constitution can pose its own difficulties. In the United States, for example, the amendment process is so rigid that often the only way of changing the Constitution is to appoint members to the Supreme Court who are likely to interpret the Constitution differently. This has led to the Supreme Court becoming overly-politicised, undermining the legitimacy of the Court and making the appointment of Supreme Court judges a core election issue.

While Ireland’s Constitutional amendment process is more straight-forward, this does not mean that we should be more flippant when it comes to deciding what to put into the Constitution. Brexit has illustrated that referendums are blunt tools, framing complex issues into simple binary choices; the forthcoming referendum on the 8th Amendment is likely to be equally polarising, with misinformation abundant.

The Role of the Oireachtas

Areas of life requiring complex laws and regulation, or issues around which there is considerable disagreement in the community on should not be contained in constitutions. Rather, constitutions establish institutions that are empowered to decide and resolve these issues. In addition, constitutions also include checks and balances on these institutions to prevent abuse of these powers. In constitutional democracies such as Ireland, the legislature—the Oireachtas— is designed to be the branch of government best-placed to resolve disagreement. Indeed, it is said that legislation is the very product of disagreement as the people’s elected representatives debate the relevant issues and vote upon them after careful deliberation. In turn, elections ensure that the people’s representatives are held accountable for their decisions.

In practice, however, the reality does not match up with theory and very often, political parties impose their own discipline to ensure that everyone within the party votes the same way. Thus, many of the disagreements that should shape and frame legislation are instead resolved behind closed doors in parliamentary party meetings after which party members emerge united on an agreed position. In ‘Westminster-style’ parliamentary democracies such as Ireland where the Dáil elects the Taoiseach and members of the government must be members of the Oireachtas, the Government can generally count on the support of a majority in the legislature. As a result, the legislature often ends up not being a forum for resolving disagreement though debate but instead merely ‘rubber-stamps’ the will of the Government.

However, there are some issues that may not be subject to a strict party whip. Although a rarity in Ireland where party discipline is extremely strong, free votes on ‘matters of conscience’ are common in parliamentary systems around the world. Abortion is often the subject of a free vote as views can diverge dramatically on the issue, even within political parties whose members should, by definition, share a common ideology. Each party representative is instead allowed to vote according to what they personally feel is the right choice. A free vote therefore is a signal that there is considerable disagreement on a particular issue.

Disagreement and the Fianna Fáil free vote

Despite the fact that Fianna Fáil members share a common ideological base, they still disagree on abortion. Thus, the Fianna Fáíl Ard Fheis vote to support retaining the 8th Amendment came after a motion calling for Fianna Fáil to support ‘a woman’s right to choose in the forthcoming referendum on repealing the Eighth Amendment of the Constitution’. Nevertheless, it appears that Micheál Martin still intends to allow Fianna Fáil TDs and Senators a free vote on any bill to amend the Constitution on the issue of abortion.

 In so doing, the leader of Fianna Fáil has acknowledged that abortion is too contentious an issue for his party to have an agreed position on. However, the free vote on repealing or modifying the 8th Amendment will be different to a free vote in other countries on abortion. In Ireland’s case it is a vote on amending or repealing a constitutional provision. It is a free vote on enshrining a particular view on a contentious issue into the Constitution, taking resolution of this issue away from the Oireachtas, the body constitutionally designed to decide such matters. It is a free vote on an issue that is too controversial for a political party to agree upon but uncontentious enough to enshrine in a constitutional provision. Ultimately, it is conferring upon members of the Oireachtas the freedom to choose according to their conscience while denying this choice to women.

If a collective of like-minded individuals such as a political party cannot agree a uniform position on an issue like abortion, then such a provision does not belong in the Constitution. By voting to retain the 8th Amendment, the Fianna Fáil Ard Fheis has only demonstrated why it should be repealed.

Image credit: http://bit.ly/2gq4BL9

 

 

The UK’s Brexit Proposals on the Irish Border: No more than a Negotiation Tactic

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The UK has finally published its negotiating position on the Irish border. The 30 page long document is, unsurprisingly, high on lofty principle but low on concrete detail. I do not wish to go through the proposals step by step as I don’t think there is need to. Others have done a much better job than I could have. In particular, I don’t want to dwell on the importance of free movement of people between the North and South of Ireland, or the importance for residents of the North to identify solely as Irish if they wish. I could not do justice to these fundamental points here.  Rather, I want to make 2 broad points.

  1. Paragraph 33 and Usurping Ireland’s Negotiating Strength

From my reading of the document, the key sentence is contained at paragraph 33:

“Wider questions about the UK’s future operation of its whole border and immigration controls for EEA nationals (other than Irish nationals) can only be addressed as part of the future relationship between the UK and the EU, and further highlights the need to move to this next phase of negotiations as quickly as possible.”

In April 2017, outgoing Taoiseach Enda Kenny heralded as a great victory the inclusion of the status of the Irish border as one of the four key issues to be decided in the Brexit negotiations prior to negotiations commencing on the UK’s future relation with the EU. What Paragraph 33 tells is us that the UK is seeking to circumvent this.

The Brexit negotiations consist of 2 strands: Firstly, the terms of divorce between the EU and the UK; and secondly, the terms of the UK’s future relationship with the EU. Since the UK voted to leave the EU, the British Government has made no secret of its desire to expedite negotiations to the second stage. Far from being a comprehensive plan outlining how the future border on the island of Ireland will work, the British Government’s proposals are a negotiating tactic to achieve exactly this.

  1. The UK does not understand the importance of the Customs Union to Ireland

The UK’s proposals essentially envisage a lax, “sure it’ll be grand” attitude to customs between the North and South of Ireland. While this may solve the issue of avoiding any ostensible border controls, what is concerning about the UK’s proposals is that they demonstrate a clear lack of understanding of Ireland’s position and the importance of the customs union.

In very crude terms, for the UK, Brexit is about keeping foreign people out; for the EU and, particularly, Ireland, Brexit is about keeping foreign goods out. Ireland does not have vast natural resources to draw upon. Rather, our key resource is agriculture. “Brand Ireland” (for want of a better, less cringe-worthy term) therefore is all about the quality of the goods produced— think green fields and healthy, happy cows and sheep.

 It is for this reason that Ireland tends to react in a rather disproportionate fashion to any crisis that may undermine this image. Hence, the Irish response to the pork-dioxin crisis in 2008 was to remove all pork products from shelves, regardless of the minimal risk involved. Similarly, the horse-meat scandal of 2013 came to light in Ireland, not because of the particularly acute problem Ireland had with horse-meat but because transparency was considered so important to ‘brand Ireland’. Covering up the issue, it was calculated, would have done more harm than good. By ripping the band-aid off quickly and cleanly, Ireland sought to re-assure other countries that any potential future issues with the quality of the products it produces would be dealt with in a similarly transparent manner. A final example can be seen from how Ireland responded to the Foot and Mouth crisis in 2001, with over 50,000 animals on the Cooley Peninsula in County Louth culled and disinfecting checkpoints set up across the county. I can still remember the hope of my school in Dundalk potentially being closed to prevent further spread but, alas, the other contingency measures were more than sufficient and only 2 cases on the island— one in Meigh in County Armagh and one in Jenkinstown County Louth—were confirmed.

It is only by understanding this context that one can see why the UK’s streamlined border approach will face significant hurdles on the island of Ireland and why Ireland will be reluctant to accept this so-called solution. The Irish border will be a weak link for goods not reaching the EU’s exacting quality standards to enter into the Irish supply chain. It is a weak link that Ireland cannot afford. Thus, while British people may be horrified at the thought of eating chlorine-washed chicken, if such produce (or similar) were to end up in Irish goods, the impact this could have on the economy and Ireland’s reputation could be disastrous, similar to the scenarios mentioned above.

Irish people may have a reputation in the UK of a ‘nudge-nudge, wink wink’ attitude to life, seeking to take shortcuts wherever possible. Fawlty Towers’ Mr O’Reilly springs to mind in this regard. But on this issue of customs, Ireland cannot afford to and the UK does not seem to understand this.

 Conclusions

Customs checks on mainland Britain rather than on the island of Ireland or ‘special status’ for Northern Ireland within the EU would solve these issues. Both of these proposals have, however, been rejected by the DUP. We are therefore no closer to a solution to the Irish border and rather than being re-assured, I’m more concerned than ever.

Image credit Duncan Hull: http://bit.ly/2wb2kwK